Subject to ties - II

With reference to Mr Nqhome's reply Subject to ties - a response, I agree that most certainly a certificate of title is a title to land. There is no disputing that and with respect, that is not an issue here. By definition a certificate of title is a substituting title, being a certificate by the Registrar based on registered facts in the Deeds Office records. In the strictest sense a certificate of registered title in respect of a piece of land should follow whatever is reflected in the existing title deed or deeds. See again Jones "Conveyancing in South Africa" 4th edition on p183 where it is stated: "It must always be remembered that as a general rule a certificate of title is merely a statement of fact (my emphasis) extracted by the registrar from the existing titles and replacing them, and, therefore, no additional matter or change of circumstances not reflected in the existing titles can be embodied in the certificate, except where authorized under the Act or regulations or in terms of statute, or because of difficulties in practice which have led to the modification to the rule"

And again, is this not much more of an act by the registrar than by the owner? Issuing of a certificate is no burden upon the land, no land can be transferred by a certificate of title and an owner does not end up with more or less than what he owned previously, only in a modified form in some instances.

For many years no consent by anybody was required to be lodged when land was being subdivided, except when a condition of title containing such a prohibition existed in the title deed of the land. The various provisions in legislation were introduced with the passing of time and for specific reasons. Act 70/1970 was introduced to prevent the subdivision of agricultural land into uneconomical units. The introduction of such prohibitions did not change the nature of certificates of title - it simply introduced a measure, like other legislation also did, which prevented the issue of a certificate of registered title in terms of section 43 of the Deeds Registries Act 47/1937 (DRA) unless the required consent to subdivide the land was obtained. Similarly the prohibition on consolidation referred to by Mr. Newmarch is a new measure brought into being for reasons unknown to me. However, these are separate issues altogether and in my opinion it still does not mean that a certificate of title constitutes dealing with the land - consent to subdivide or consolidate are really separate, unrelated matters imposed much later and must not be confused with the basic principles of a certificate of title. These issues may prevent the issue of a certificate of title, not because of the land being dealt with in the sense of it being burdened or being alienated in any fashion, but to prevent other, undesirable results.

I am not sure which certificate of registered title Mr. Nqhome refers to in paragraph 5 of his reply, but a certificate of registered title in terms of section 36, where tied properties are held under one title, in respect of one of the tied properties, cannot possibly be seen either as dealing with the property, or requiring the Minister's consent? Such a notion demonstrates exactly why I am of the opinion that this matter needs to be reconsidered and a change in practice made. Obviously a certificate of registered tile in terms of section 43 of a portion of one of the tied properties will require the Minister's consent to subdivide, but again, see my argument above.

Furthermore, qualification of conditions ensures that conditions applying to specific components of a consolidated property can be clearly identified. Surely, there cannot be any objection to a consolidated property of which a part/component is tied to another property? The consolidated farm cannot be subdivided without the Minister's consent. There is nothing in such a situation that frustrates the purposes of Act 70/1970, it does not create any situation which is either untenable or unlawful, and in fact is more of a positive as far as the Act and its purpose is concerned. And if a consolidation is not dealing with the property in alienating or burdening the property, then the condition is not being contravened.

The interpretation of statutes changed somewhat over the last number of years from the very restrictive standards that used to apply. Why interpret a condition such as this in such a way when no prejudice can be caused nor any frustration of the purpose of Act 70/1970 will be brought about? Even more so if one looks at the wording of such Ministerial conditions, which refer to separate mortgage, sale, transfer, etc., all actions that are about burdening or alienating the property. The little rider "...or in any other manner deal..." must surely refer to similar acts that do constitute dealing with the property.

Dudley Lee
7th June 2010